Medical Board of Australia v Dr FA

[2012] QCAT 110

CITATION: Medical Board of Australia v Dr FA [2012] QCAT 110

PARTIES:	Medical Board of Australia (Applicant)
v
Dr FA (Respondent)

APPLICATION NUMBER:   OCR120-11

MATTER TYPE: Occupational regulation matters

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 14 March 2012

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Dr FA has leave to lead the documents noted as relevant in the list of documents attached to this order.

2.    Otherwise, Dr FA’s applications for leave to lead further evidence at the hearing are refused.

CATCHWORDS: 

EVIDENCE – PROCEDURE – where practitioner a litigant in person – where practitioner produced material at the hearing which had not been disclosed – where hearing adjourned to enable practitioner to identify all material she wished to lead in evidence – where applicant gave different material to the Tribunal and the Board – where applicant did not make any submissions as to why the material was relevant – what material the practitioner should have leave to lead at the resumed hearing

Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 28(4), 29(1)(a)(i), 43(2)(b)(ii)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

What is this application about?

1. The Tribunal adjourned the hearing of the Board’s disciplinary application against Dr FA when she made a last minute attempt to lead evidence in the course of cross-examining the Board’s expert witness, Dr Challis.

2. Since then, Dr FA has provided the Tribunal and the Board with a large volume of documents and other material she wants the Tribunal to consider.  Regrettably, Dr FA did not provide the same material to the Tribunal as she did to the Board.

3. The Tribunal has expended considerable time and effort in compiling a common set of materials.  The list attached to these reasons reflects the Tribunal’s best endeavours to identify the materials that Dr FA provided to either the Tribunal or the Board by 10 February 2012.[1]  The Tribunal gave both parties the opportunity to provide written submissions about the relevance of those documents.  Only the Board has done so.

   [1]     On 1 February 2012, the Tribunal directed Dr FA to provide the Tribunal and the Board with copies of any further material she wished to lead.  At Dr FA’s request, the Tribunal extended time to 10 February 2012.

What are the proceedings about?

1. The Board alleges Dr FA engaged in professional misconduct or unprofessional conduct in posting certain material on the website  It claims the material contained advice and instructions to women about how to achieve a termination of pregnancy without medical supervision.  It alleges Dr FA presented the material as expert medical advice, without referring to relevant professional guidelines.

2. Dr FA does not dispute she posted the material on the website, but denies this constitutes a ground to take disciplinary action against her.

3. Judging by the material Dr FA wishes to lead and the questions she has already asked Dr Challis in cross-examination, it is clear that she approaches this proceeding as a trial about the moral, social and legal issues relating to access to abortion.

4. From that perspective, Dr FA has sought to raise issues about the risks pregnancies pose to women and the social, health and other impacts that, arguably, might be consequent upon unplanned or unwanted pregnancies, such as suicide, filicide and family violence.  Those arguments are pertinent to issues around a woman’s access to the means to control her fertility and to choose if, and when, she has a child.

5. These proceedings arise, however, in the context of a system of regulation of health practitioners intended to maintain professional standards, maintain public confidence in the profession and protect the public.

6. The Board’s case against Dr FA reflects its statutory function in that system.  It has brought disciplinary proceedings arising from Dr FA’s conduct as a medical practitioner.

7. The focus of the Tribunal’s enquiry is not what society and the law should provide for.  Rather, the focus must be whether any proven conduct by Dr FA breaches the professional standards that apply to her in her capacity as a medical practitioner.

8. The Tribunal has assessed the further material that Dr FA wishes to lead against those issues the Tribunal must consider.  In summary, they are:

   a)     Did Dr FA post the material on the website?  (This is conceded.)

   b)     Did the material provide advice and instructions about how to achieve a medically unsupervised termination of pregnancy?  (This does not appear to be in dispute.)

   c)     Was the material presented as expert medical advice?

   d)     Did it provide generic medical information without reference to relevant professional guidelines?

   e)     Are medically unsupervised terminations of pregnancy unsafe and did Dr FA know or should she have known this?

   f)     Did the material fail to appropriately warn of the risks of medically unsupervised terminations of pregnancy?

   g)     Did Dr FA provide advice to users of the website about how to obtain the prescription drug, misoprostol, including methods of obtaining it over the internet without lawful prescription?

   h)     Did Dr FA advocate and promote the website to the public?

   i)     Depending on the Tribunal’s findings on those questions, did Dr FA’s conduct amount to professional misconduct or unprofessional conduct?

What opportunities has Dr FA had to present her materials?

1. Although she has a right to legal representation in these proceedings, Dr FA appears for herself.[2]  It is not necessary for a person to have legal representation in Tribunal proceedings.  An objective of the Queensland Civil and Administrative Tribunal Act 2009 is to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[3]  The Tribunal must take all reasonable steps to ensure that each party understands the practices and procedures of the Tribunal.[4]

   [2] Queensland Civil and Administrative Tribunal Act 2009, s 43(2)(b)(ii).

   [3]        Queensland Civil and Administrative Tribunal Act 2009, s 3(b).

   [4]        Queensland Civil and Administrative Tribunal Act 2009, s 29(1)(a)(i).

2. Dr FA has had experience with prior disciplinary proceedings.  However, then she was legally represented.  Further, those proceedings were brought in the Health Practitioners Tribunal, a jurisdiction since assumed by this Tribunal.  There are some material differences in the procedures of the two Tribunals.

3. Nevertheless, Dr FA is a highly educated and intelligent person and it is reasonable for the Tribunal to expect that she would understand a clear and direct explanation of the Tribunal’s procedures.  On multiple occasions, Members of the Tribunal have taken some trouble to explain to Dr FA in clear and direct terms the procedures for disclosing any evidence she might wish to rely upon.

4. The Tribunal must ensure, so far as is practicable, that all relevant material is disclosed so it may decide the proceeding with all relevant facts.[5]  This does not mean the Tribunal must receive any material that a party wishes to rely upon.

   [5]        Queensland Civil and Administrative Tribunal Act 2009, s 28(4).

5. Dr FA has participated in a number of directions hearings held to ensure the matter was properly prepared for hearing.  On each occasion, the Member presiding asked whether she wished to place any material before the Tribunal.  On each occasion, she informed the Tribunal that she did not.

6. The Tribunal directed Dr FA to file any affidavits she intended to rely on by 16 December 2011.  She did not file any material by that date.

7. The Board requested a directions hearing in late December.  It expressed its concern that its expert witness, Dr Challis, who was travelling from Sydney for the hearing, should have a proper opportunity to consider any material that Dr FA might ask him to comment upon during his evidence.

8. The Senior Member who presided at the directions hearing, Mr Oliver, asked Dr FA whether she intended to file further material or whether she was content to go to the hearing on the current state of the evidence.  She replied: No I won’t be providing any material, thankyou, your Honour.

9. Mr Oliver then explained simply and clearly that Dr FA was not required to file any further material but that if she wanted to do so, she would need the leave of the Tribunal.  He explained that if leave was granted, the hearing might have to be adjourned and that might result in an adverse costs order against her.  Alternatively, he told her, the Tribunal might refuse leave and the hearing might proceed on the evidence that had been filed at that time.  He concluded by stating that: on the basis of what you’ve told me the hearing will then proceed on 1 February 2012 on the current state of the evidence that has been filed in the tribunal.  Dr FA said she understood that.

10. On 1 February 2012, the hearing commenced.  It had come to the Tribunal’s attention that Dr FA had brought with her some material that she had not filed.  The hearing was delayed while she and counsel for the Board discussed the material she wanted to lead.  The Tribunal asked Dr FA to ensure that she brought to counsel’s attention anything she wanted to rely on during the hearing.  After hearing argument, the Tribunal admitted certain items into evidence and rejected others, having no relevance to the proceedings.

11. Despite this, when Dr FA came to cross-examine Dr Challis later in the morning, she presented yet further material that had not been disclosed to either the Tribunal or the Board.  The hearing was adjourned, again, and Dr FA was directed to provide copies of any further material she wished to rely upon.

What further materials will the Tribunal receive?

1. That rather lengthy account of the procedural history reveals the repeated attempts the Tribunal has made to elicit from Dr FA all the material she wants to rely upon.

2. At the very latest, by the directions hearing in late December she can have been in no doubt she was required to disclose any material that she wanted to rely on during the hearing.

3. Although Dr FA assured the Tribunal on the morning of the hearing that she had then produced everything she wanted to rely on, she has since produced more than 100 documents she now wants to introduce into the proceedings.

4. The confusion created by Dr FA giving different sets of documents to the Tribunal and to the Board in relation to this application compounds the Tribunal’s difficulty in dealing with this matter in a way that is accessible, fair, just, economical, informal and quick.  That is an objective intended to benefit all parties to proceedings before the Tribunal.

5. The way in which Dr FA has approached the hearing has significantly inconvenienced the Tribunal and delayed the finalisation of the matter.  The Tribunal has been as benign as possible in its treatment of Dr FA’s successive applications for leave.

6. Dr FA has not availed herself of the opportunity the Tribunal gave her to respond to the Board’s written submissions about the documents.  She has not explained why any of them are relevant to this proceeding.

7. In those circumstances, for each document, unless the Tribunal is satisfied it bears upon the issues the Tribunal must determine, the Tribunal has refused Dr FA’s application for leave to lead the document.

8. The list of documents attached to these reasons lists all the documents, so far as it was reasonably practicable to do so, that Dr FA had provided to either the Tribunal or the Board by 10 February.

9. For each document, the list records whether the Tribunal grants leave or not.

10. In summary, the decisions made on the material produced can be characterised in the following way:

a)Some of the documents are scientific papers or journal and other articles which refer to scientific research.  Others are guidelines or recommendations to medical professionals.  Much of the material relates to research or conditions outside Australia, including the United States, the United Kingdom and developing countries.  To the extent that material of that nature deals with medical abortion, the Tribunal has admitted it.  It may assist the Tribunal to assess the current state of knowledge about the use of the specific drugs for medical abortions; the risks associated with them; and the guidance given to professionals who supervise their use and women who consume them.

b)There are numerous abstracts for papers and presentations by Dr FA and others.  The Tribunal could not ascertain any relevance from the abstracts alone.  The Tribunal has not admitted that material.

c)Loosely described, most of the remaining material relates to the moral, social and legal issues associated with access to abortion, much of it in the nature of opinion pieces or advocacy.  This is not relevant to the issues the Tribunal must consider.  The Tribunal has not admitted that information.

d)Finally, the Tribunal has not admitted a number of unsigned character references that appear to have been prepared for the purpose of previous disciplinary proceedings.  If, ultimately, the Tribunal makes a disciplinary finding against Dr FA, she will be given the opportunity to provide the Tribunal with original signed character references and other relevant material relating to the sanction the Tribunal should impose.  It is not necessary or appropriate to canvass that matter unless a disciplinary finding is made against Dr FA.

1. Dr FA has leave to lead only those documents identified in the list.  They will be marked as exhibits when the hearing resumes.

2. Otherwise, Dr FA does not have lead to lead the further material provided either to the Tribunal or the Board since the hearing was adjourned.

Attachment to OCR120-11

Document description	Date	Status
1.	Correspondence from Dr Nicklin to Dr AF	18.01.06	Leave granted.
2.	Government of Western Australia, "Clinical Guidelines; Section B: Obstetrics and Midwifery Guidelines; '5.13 Mid Trimester Termination of Pregnancy'"	March 2001	Leave granted.
3.	Australian Doctor, "Computer cure-all" (page 53)	17.06.11	Leave granted.
4.	A4 page with copies of two posters and marked 'Abu Dhabi 2009'	2009	These posters appear to be copies of the posters comprising Exhibit 1.
5.	'Social Media and the Medical Profession – A Guide to Online Professionalism for Medical Practitioners and Medical Students'	Undated	Leave granted.
6.	Potts and Campbell, 'Unsafe Abortion: A Preventable Problem' (2002) 4(3) The Obstetrician & Gynaecologist 130	2002	Leave granted.
7.	Dickinson, 'Late Termination of Pregnancy' (2007) 9(4) O & G Magazine 33	2007	Leave granted.
8.	ABC News, 'Abortion amendments pass Qld Parliament'	03.09.1009	Leave granted.
9.	ABC News, 'Abortion laws 'still won't protect doctors''	02.09.2009	Leave granted.
10.	1APP (Dr AF) v Medical Board of Queensland [2010] HCASL 224	30.09.10	Leave granted.
11.	Order of the High Court of Australia	30.09.10	Leave granted.
12.	Gonzalez, "Outpatient second trimester pregnancy termination" Contraception Online	02.11.01	Leave granted.
13.	Aldrich and Winikoff, "Does methotrexate confer a significant advantage over misoprostol alone for early medical abortion? A retrospective analysis of 8678 abortions" BJOG 555	2007	Leave granted.
14.	Gulalai Ismail, 'Putting politics back into Advocacy and Services', YouTube video	Undated	Leave refused.
15.	Ibis Reproductive Health, printouts from Medication Abortion website	09.2009	Leave granted
16.	Ibis Reproductive Health, 'Medication Abortion – A Guide for Health Professionals'	Undated	Leave granted.
17.	Ibis Reproductive Health, 'Medication Abortion – A Training Module for Health Professionals', power point presentation	Undated	Leave granted.
18.	'Instructions for Use – Abortion Induction with Misoprostol in Pregnancies through 9 weeks LMP'	31.08.04	Leave granted.
19.	Amnesty International poster, 'Human Rights Defender', front cover only 29(4) (2010/2011)	2010/2011	Leave refused.
20.	RCOG, 'The Care of Women Requesting Induced Abortion' (2011) (cover page and index only)	2011	Leave granted.
21.	WHO, 'Safe Abortion: Technical and Policy Guidance for Health Systems' (cover page only)	Undated	Leave granted.
22.	Senate Committee Report, 'The Hidden Toll: Suicide in Australia' (cover page only)	June 2010	Leave refused.
23.	International Consortium for Medical Abortion, 'Annual Report' (cover page only)	2010	Leave granted.
24.	'Maternal Mortality, Unplanned Pregnancy and Unsafe Abortion in Timor-Leste: A Situational Analysis'	Undated	Leave refused.
25.	Abortion Review, Issue 34	Spring 2011	Leave refused.
26.	Abortion Review, Issue 35	Summer 2011	Leave granted.
27.	Email, 'GOP War on Women Goes Global'	02.03.11	Leave refused.
28.	Clark, 'From the President', 7(4) O & G 5	Summer 2005	Leave granted.
29.	Sparrow, Introducing Mifepristone into New Zealand' (2004) 6(2) O & G 145	2004	Leave granted.
30.	Abstract: Dr AF, 'Contraceptive Practice and Maternal and/or Child Health Outcomes, Contraception and Abortion'	2009	Leave refused.
31.	Abstracts: Dr AF, 'Perspectives on Women's Contraceptive and Abortion Choice' and 'Termination of Pregnancy Services in Queensland'	2002	Leave refused.
32.	Abstract: 'Eclectic Abortion Including by Primary Care for the Second Trimester'	Undated	Leave refused.
33.	Abstract: 'Domiciliary Second Trimester Abortion'	Undated	Leave refused.
34.	Abstract: Dr AF, 'Aspects of the Management of Pregnancies associated with Prostitution'	2008	Leave refused.
35.	Abstract: Dr AF, 'Aspects of the Management of Pregnancies associated with Prostitution'	2009	Leave refused.
36.	Abstract: Dr AF, 'Born to Gridlock or Hospital in the Home, the Case for 'Helipods' and 'Bub-Hubs'	Undated	Leave refused.
37.	Abstract: Dr AF, 'Documentation in Forensic Gynaecology'	Undated	Leave refused.
38.	Abstract: Dr AF, 'Chemical Aspects of Gynaecological Jurisprudence'	2008	Leave refused.
39.	Abstract: Dr AF, 'Diverse Aspects of Pregnancy in General Practice'	2008	Leave refused.
40.	Abstract: 'Perils to Indigenous and Other Girls in Queensland'	2010	Leave refused.
41.	Letter to Mr Chenoweth	13.02.06	Leave refused.
42.	Letter to Mr Chenoweth from Dr Campbell	Undated	Leave refused.
43.	Document on letterhead of Professor Mackay	Undated	Leave refused.
44.	NHMRC, 'An Information Paper on Termination of Pregnancy in Australia'	1996	Leave granted.
45.	Stickers and pamphlets relating to the Royal Children's Hospital, Brisbane Rally and Bush Kids Health Scheme	2009	Leave refused.
46.	Two pages of colour photocopying which show multiple photographs and words including 'Trafficked', 'State funding for sex service', 'Sex trafficking', 'home care crucial to patients', 'Macabre dance of death'	Undated	Leave refused.
47.	King, 'Suicide out of the Shadows', The Courier Mail	6-7.08.11	Leave refused.
48.	Carroll, 'When Doctors Collide', Surgical Life	September / October 2011	Leave refused.
49.	RACGP, 'Keeping the Doctor Alive' (six pages only)	2005	Leave refused.
50.	'Women falls to death, girl's body found'	08.09.11	Leave refused.
51.	Six, A3 sized, colour copied and laminated posters, one including the words 'Women & their Homelife, Women & their Friends, Women & their Families'; one including the words 'Women & Medicine, Women & Healthcare, Women & the Medical Profession, Women & Science'; one including the words 'Women with Choice, Women with Options, Women have the Right to Choose'; one with the words 'Women and Men's Laws, Women and Men's Religions, Women in the Law'; and one with lists under the headings 'The Laws' and 'The consequences'	Undated	Leave refused.
52.	Print outs from abortions.com/	15.08.10	Leave granted.
53.	Application for Special Leave to Appeal	18.05.10	Leave refused.
54.	Draft Notice of Appeal	16.06.10	Leave refused.
55.	Applicant's Summary of Argument	16.06.10	Leave refused.
56.	Radio National, The Law Report, 'Honour killing'	07.02.12	Leave refused.
57.	Wikipedia print out, 'George Tiller'	14.11.11	Leave refused.
58.	Page from 'Australian Medicine' containing articles 'National Health Reform' and 'Mandatory Notification – Potential for abuse'	September 2011	Leave refused.
59.	Elkin et al., 'Doctors Disciplined for Professional Misconduct in Australia and New Zealand, 2000 – 2009' (2011) 194(9) MJA 452	2011	Leave refused.
60.	Page from 'Australian Medicine' containing articles 'Health reform – has there been any?' and 'TGA moves forward on transparency agenda'	August 2011	Leave refused.
61.	Monbiot, 'Church is to blame for increase in abortion', The Guardian Weekly	07.03.08	Leave refused.
62.	Letter to Dr AF from BushKids, Royal Queensland Bush Children's Health Scheme	16.12.11	Leave refused.
63.	Email to Dr AF from [email protected], 'Happy St Brigid's Day – Ireland's first abortion provider!'	03.02.12	Leave refused.
64.	Pandian et al., 'The treatment of incomplete miscarriage with oral misoprostol' (2001) 108 British Journal of Obstetrics and Gynaecology 213	2001	Leave granted.
65.	Philp, 'Mandatory reporting' (2010) DoctorQ 38	2010	Leave refused.
66.	Medical Board of Queensland, 'Mandatory Reporting'	Undated	Leave refused.
67.	Medical Board of Queensland, 'Notification form'	January 2010	Leave refused.
68.	Affidavit of Dr AF (without annexures)	04.12.08	Leave refused.
69.	Bibliography with cover page 'The Journal of Forensic Medicine Theoretical and Applied'	2007	Leave refused.
70.	Abstracts for oral session given by Dr AF at 'Domestic Crime to International Terror – Forensic Science Perspectives'.  Abstract titles: 'Chemical aspects of gynaecological jurisprudence' and 'Documentation in Forensic Gynaecology'	2008	Leave refused.
71.	Sparrow, 'Abortion Then & Now – New Zealand abortion stories from 1940 to 1980' (cover page only)	Undated	Leave refused.
72.	Semmelweis, 'The Etiology, Concept and Prophylaxis of Childbed Fever' (cover page only)	Undated	Leave refused.
73.	Haigh, 'The Racket – How abortion became legal in Australia' (cover page only)	Undated	Leave refused.
74.	'Sex Work and Sex Workers in Australia' (cover page only)	Undated	Leave refused.
75.	Dickenson, 'Ethical Issues in maternal-Fetal Medicine' (cover page only)	Undated	Leave refused.
76.	Letter to Dr AF from the High Court of Australia	01.10.10	Leave refused.
77.	Letter to Dr AF from the High Court of Australia	23.09.10	Leave refused.
78.	Letter to 'All health funds' from Dr AF	06.08.07	Leave refused.
79.	Wardill, 'Unions buy into election' (2012) The Courier Mail, page 11	06.02.12	Leave refused.
80.	Houghton, 'Health on critical list for a deep cut' (2011) The Courier Mail, page 28 and 29	21.12.11	Leave refused.
81.	Criminal Code (Medical Treatment) Amendment Act 2009	Leave refused.
82.	'Woman falls to death as girl's body found'	07.09.11	Leave refused.
83.	Morris, 'Health job ads sick bid for votes' (2012) The Courier Mail page 22 and 23	07.02.12	Leave refused.
84.	Fraser, 'Forty years of combined oral contraception: the evolution of a revolution' (2000) 173(20) MJA 541	20.11.00	Leave refused.
85.	Bundle of submissions made in relation to the Parliamentary Inquiry into the Queensland Children's Hospital	Various	Leave refused.
86.	Statutory Declaration of Dr AF	10.02.12	Leave granted.
87.	"Abortion law reform is still unfinished business" Sydney Morning Herald	08.03.11	Leave refused.
88.	The "Amsterdam Declaration" on abortion	1996	Leave granted.
89.	Johnson, "As global abortion levels decline, unsafe abortions rise" Lancet	19.01.11	Leave granted.
90.	"Submission from Family Planning Association" Hansard UK	August 2007	Leave granted.
91.	Choong, "Abortion: Consider the harsh realities"	03.04.11	Leave refused.
92.	Millar and Bucci, "woman dies after abortion clinic visit"	21.12.11	Leave refused.
93.	Email from Marge Berer, "self-induction of abortion among women in the US"	03.12.10	Leave refused.
94.	"More Harare women using traditional herbs for abortion"	13.03.11	Leave refused.
95.	Upadhyay, "Breaking the taboo: Real access to safe abortions requires more than legalisation", The Kathmandu Post	28.02.11	Leave refused.
96.	Jordan and Pace, "Maintaining access to safe abortion in the United States: a post-Gonzales primer and guide to action" (76) Contraception	2007	Leave refused.
97.	Fiala et al., "Acceptability of home-use of misoprostol in medical abortion" 70 Contraception 387	2004	Leave granted.
98.	Speidel and Grossman, "Family planning and access to safe and legal abortion are vital to safeguard the environment" 76 Contraception  415	2007	Leave refused.
99.	"Patient Charter of Rights" and "New privacy guidelines for health care providers"	Unclear	Leave refused.
100.	Woodrow, "Termination review committees: are they necessary?" (2003) 179 MJA 92	21.07.03	Leave refused.
101.	Conference Display –"Aspects of management of pregnancies associated with prostitution"	Undated	Leave refused.
102.	Conference Display – "Is there interest by general practitioners in delivery of maternity care in the home"	Undated	Leave refused.
103.	Conference Display – "A Regime for use for first trimester abortion using misoprostol in the absence of mifepristone"	Undated	Leave refused.
104.	Conference Display – "A report of 25 cases of second trimester abortion using misoprostol in the absence of mifepristone"	Undated	Leave refused.